Ferguson Aluminum Corp.

National Labor Relations Board - Board Decisions

Feb 29, 1988

287 N.L.R.B. 1293 (N.L.R.B. 1988)

FERGUSON ALUMINUM CORP 1293
Ferguson Aluminum Corporation and United Steel-
workers of America, AFL-CIO-CLC. Case 14-
CA- 19242
29 February 1988
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
CRACRAFT
Upon a charge filed by the Union 9 November
1987, the General Counsel of the National Labor
Relations Board issued a complaint against Fergu-
son Aluminum Corporation, the Respondent, alleg-
ing that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act.
The complaint alleges that on 21 July 1987, fol-
lowing a Board election in Case 14-RC-9821, the
Union was certified as the exclusive collective-bar-
gaining representative of the Respondent's employ-
ees in the unit found appropriate. (Official notice is
taken of the "record" in the representation pro-
ceeding as defined in the Board's Rules and Regu-
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The complaint further al-
leges that since 29 September 1987 the Respondent
has refused to bargain with the Union. On 8 De-
cember 1987 the Respondent filed its answer admit-
ting in part and denying in part the allegations in
the complaint.
On 21 December 1987 the General Counsel filed
a Motion for Summary Judgment On 23 Decem-
ber 1987 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Respondent filed no response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
Ruling on Motion for Summary Judgment
The Company's answer admits its refusal to bar-
gain, but attacks the validity of the certification on
the basis of its objections to the election in the rep-
resentation proceeding The General Counsel
argues that all material issues have been previously
decided We agree with the General Counsel.
The record, including the record in Case 14-
RC-9821, reveals that an election was held 2
March 1984 pursuant to a stipulated election agree-
ment. The tally of ballots shows that of approxi-
mately 23 eligible voters, 12 cast valid ballots for
and 9 against the Union; there was 1 challenged
ballot, an insufficient number to affect the election
results. On 29 March 1984 the Regional Director
issued a report recommending overruling the Com-
pany's objections. On 13 July 1984 the Board di-
rected a hearing on the Company's Objection 1 and
adopted the remaining portions of the Regional Di-
rector's report. On 31 August 1984 a hearing offi-
cer issued a report recommending overruling the
objection. On 12 December 1984 the Board re-
manded for the hearing officer to make additional
findings. On 21 December 1984 the hearing officer
issued a supplemental report recommending over-
ruling the objection. No exceptions were filed to
the hearing officer's supplemental report.'
It is well settled that in the absence of newly dis-
covered and previously unavailable evidence or
special circumstances, a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146,
162 (1941); Secs. 102.67(f) and 102 69(c) of the
Board's Rules and Regulations.
All issues raised by the Respondent were or
could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege any
special circumstances that would require the Board
to reexamine the decision made in the representa-
tion proceeding. We therefore find that the Re-
spondent has not raised any issue that is properly
litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Respondent, an Illinois corporation, engages
in aluminum extrusion production at its facility in
Olmstead, Illinois, where it annually purchases and
receives products, goods, and materials valued in
excess of $50,000 directly from points outside the
State. We find that the Respondent is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and that the Union is a
labor organization within the meaning of Section
2(5) of the Act.
i On 20 July 1987 the hearing officer's supplemental report was
brought to the attention of the Office of the Executive Secretary On 21
July 1987 the Board issued an unpublished supplemental decision adopt-
ing the hearing officer's supplemental report and certifying the Union
287 NLRB No. 138
1294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held 2 March 1984 the
Union was certified 21 July 1987 as the collective-
bargaining representative of the employees in the
following appropriate unit:
All production and maintenance employees
employed at Respondent's Olmstead, Illinois
facility, excluding office clerical and profes-
sional employees, guards, and supervisors as
defined in the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since 21 September 1987 the Union has request-
ed the Respondent to bargain, and since 29 Sep-
tember 1987 the Respondent has refused. We find
that this refusal constitutes an unlawful refusal to
bargain in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By refusing on and after 29 September 1987 to
bargain with the Union as the exclusive collective-
bargaining representative of employees in the ap-
propriate unit , the Respondent has engaged in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist, to bargain on request with the
Union, and, if an understanding is reached, to
embody the understanding in a signed agreement.2
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union. Mar-Jac Poultry Co., 136 NLRB
785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that
the Respondent, Ferguson Aluminum Corporation,
Olmstead, Illinois, its officers, agents, successors,
and assigns, shall - ,
1. Cease and desist from
(a) Refusing to bargain with United Steelworkers
of America, AFL-CIO-CLC as the exclusive bar=
gaining representative of the employees in the bar-
gaining unit.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All production and maintenance employees
employed at Respondent's Olmstead, Illinois
facility, excluding office clerical and profes-
sional employees, guards, and supervisors as
defined in the Act.
(b) Post at its facility in Olmstead , Illinois, copies
of the attached notice marked "Appendix."3
Copies of the notice, on forms provided by the Re-
gional Director for Region 14, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
2 We deny the General Counsel's request for a visitatorial clause in our the United States Court of Appeals Enforcing an Order of the National
Order See Cherokee Marine Terminal, 287 NLRB No 53 (Jan 28, 1988) Labor Relations Board "
FERGUSON ALUMINUM CORP 1295
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with United
Steelworkers of America , AFL-CIO-CLC as the
exclusive representative of the employees in the
bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All production and maintenance employees
employed at Respondent's Olmstead, Illinois
facility, excluding office clerical and profes-
sional employees, guards, and supervisors as
defined in the Act.
FERGUSON ALUMINUM CORPORATION